Citation Nr: 0126294
Decision Date: 11/13/01 Archive Date: 11/20/01
DOCKET NO. 01-00 276 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to a total disability rating for compensation
purposes based upon individual unemployability due to
service-connected disability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
A. Pitts, Associate Counsel
INTRODUCTION
The veteran had active service from May 1943 to December
1945.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a September 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Buffalo, New York.
REMAND
During the pendency of this appeal, on November 9, 2000, the
Veterans Claims Assistance Act of 2000 (VCAA) was signed into
law. See 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126
(West Supp. 2001). To implement the provisions of the VCAA,
VA promulgated regulations published at 66 Fed. Reg. 45,620
(Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a)). Under the VCAA and its
implementing regulations, VA bears a heightened duty prior to
adjudicating a claim to assist a claimant with the
development of evidence as well as a duty to notify the
claimant of what evidence is needed to substantiate the claim
and if certain evidence cannot be obtained. 38 U.S.C.A.
§§ 5102, 5103, 5103A.
The veteran is entitled to the benefits of the new law.
Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991) (where
the law changes after a claim has been filed or reopened, but
before the administrative or judicial appeal process has been
concluded, then, unless Congress has provided otherwise, the
version most favorable to the appellant will apply).
After reviewing the record, the Board finds that the duties
described in the VCAA have not been completely fulfilled.
Accordingly, the Board finds that the issue on appeal must be
remanded.
The veteran does not have a 100 percent schedular rating for
his service-connected disabilities. Rather, he has a
combined schedular rating of 60 percent for those
disabilities. Under regulation 38 C.F.R. § 4.16(a), a total
disability rating is warranted, where the schedular rating is
less than total, when it is found that a disabled veteran is
unable to secure or follow a substantially gainful occupation
as a result of a single service-connected disability ratable
at 60 percent or more or as the result of two or more
disabilities provided at least one is ratable at 40 percent
or more and there is sufficient additional service-connected
disability to bring the combined rating to 70 percent or
more. Disabilities of both lower extremities are considered
as a single disability. See 38 C.F.R. § 4.16(a) (2000). The
veteran, therefore, meets the percentage requirements for
TDIU.
The remaining question is whether his service connected
disabilities render him unable to secure and follow a gainful
occupation. The United States Court of Appeals for Veterans
Claims (known as the United States Court of Veterans Appeals
prior to March 1, 1999) (hereinafter, "the Court") has held
that in the case of a claim for total rating based on
individual unemployability, the duty to assist requires that
VA obtain an examination which includes an opinion on what
effect the appellant's service-connected disability has on
his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297
(1994).
There is no medical opinion in the record of this claim that
addresses this question. The veteran does have a number of
significant non-service connected disabilities, and the RO
denied his claim on the basis that he is rendered
unemployable by the non-service-connected disabilities. The
Court has held that with claims of entitlement to a TDIU, it
is insufficient for VA merely to state that a veteran's
unemployability is due to nonservice-connected rather than
service-connected disabilities. Rather, the Court said, VA
must provide in its decision an "analysis of the current
degree of unemployability attributable to the service
connected conditions" as distinguished from those of the
veteran that are not service connected. Cathell v. Brown, 8
Vet. App. 539, 545 (1996) (emphasis added). However, the
record does not contain the medical evidence required to so
decide the claim.
The Board notes that there is currently of record a
statement, dated in February 2000, by a physician who has
treated him mainly for orthopedic problems which says only
that the veteran is "permanently and totally disabled due to
multiple medical problems." Under the VCAA, VA also has a
duty to notify a claimant of the evidence necessary to
substantiate the claim when, as here, the application for
benefits is substantially complete. 38 U.S.C.A. § 5103 (West
Supp. 2001); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to
be codified at 38 C.F.R. § 3.159(b)).
The new law emphasizes the responsibility of VA to obtain
records. The VCAA and the implementing regulations require
VA to make reasonable efforts to obtain records pertinent to
the claim, and if the records could not be secured, to so
notify the claimant. 38 U.S.C. A. § 5103A; 66 Fed. Reg.
45,620, 45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R.
§ 3.159(c)(1)-(3)). The implementing regulation prescribes
the content of the notice that VA must give to a claimant if
it is unable to obtain the records in question. See 66 Fed.
Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified at
38 C.F.R. § 3.159(e)).
In his formal claim for a TDIU rating, presented on VA Form
21-8940, Veteran's Application for Increased Compensation
Based on Unemployability, filed in April 2000, the veteran
states that he had last worked in 1973 and left his job
because of an injury involving his knees. A completed VA
Form 2104192, Request for Employment Information in
Connection With Claim for Disability Benefits received from
his former employer states that the veteran left work, in
approximately 1974, because of a "compensation injury." On
remand, the RO should ascertain whether the veteran was ever
awarded or denied workmen's compensation benefits and if it
learns that he was, should obtain the records supporting the
decision, including all medical records.
In private medical records dated in October 1999 and July
1999, it was reported that the veteran received his routine
medical care from VA. There are no VA treatment records in
the claims file, however. Under Bell v. Derwinski, 2 Vet.
App. 611 (1992), VA is deemed to have constructive knowledge
of certain documents which are generated by VA agents or
employees, including VA physicians. Id. at 612-13. If those
documents predate a Board decision on appeal, are within VA's
control, and could reasonably be expected to be part of the
record, then "such documents are, in contemplation of law,
before the Secretary and the Board and should be included in
the record." Id. at 613. If such material could be
determinative of the claim, a remand for readjudication is in
order. Dunn v. West, 11 Vet. App. 462, 466 (1998); 38 U.S.C.
A. § 5103A; 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to
be codified at 38 C.F.R. § 3.159(c)(1)-(3)). Therefore, the
Board is required to remand this case for efforts to secure
outstanding VA treatment records.
Accordingly, this case is REMANDED for the following actions:
1. The RO should ensure that all
notification and development action
required by the Veterans Claims
Assistance Act of 2000, in addition to
that specifically requested below, is
completed. In particular, the RO should
ensure that the new notification
requirements and development procedures
contained in sections 3 and 4 of the Act,
see 38 U.S.C.A. §§ 5102, 5103, 5103A, and
5107, 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(to be codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, and 3.326(a)), are
satisfied.
2. The RO should contact the veteran and
afford him the opportunity to identify or
submit any additional pertinent evidence
in support of either or both of his
claims. Particular efforts should be
made to ascertain whether there are any
outstanding records for the veteran at
any VA medical facility and all workers'
compensation records, including medical
records, concerning any determination
concerning the veteran. These efforts
should be undertaken in accordance with
the provisions of 38 U.S.C.A. § 5103A(b)
(West Supp. 2001).
3. The RO should request that the
private physician, who offered the
February 2000 opinion as to the veteran's
employability, clarify the conditions
that render the veteran totally disabled.
4. Thereafter, the RO should contact the
examiners who conducted the veteran's May
and June 2000 VA examinations. The
examiners should be requested to revue
the claims folder and express an opinion
as to whether the veteran's service
connected disabilities preclude the
veteran from obtaining and maintaining
gainful employment. If the examiners are
unable to furnish the necessary opinion
the veteran should be afforded an
appropriate examination to evaluate the
severity of his service-connected
disabilities (those of the knees and
feet) in terms of their effect on his
ability to maintain substantially gainful
employment. The examiner should review
the claims folder and note such review in
the examination report.
The examiner should enter an opinion in
the examination report as to whether the
service-connected disabilities alone
would prevent the veteran from carrying
on substantially gainful employment. In
formulating the opinion, the examiner
should disregard both the age and the
nonservice-connected impairments of the
veteran.
5. The veteran is hereby notified that
it is his responsibility to report for
the VA examination and to cooperate in
the development of the claim. Failure to
report for a VA examination without good
cause may result in denial of the claim.
38 C.F.R. § 3.655 (2000). In the event
that the veteran does not report for the
aforementioned examination, documentation
should be obtained which shows that
notice scheduling the examination was
sent to the last known address. It
should also be reported whether any
notice was returned as undeliverable.
6. Thereafter, the RO should
readjudicate the claim of entitlement to
a TDIU rating. If the claim remains
denied, the RO should provide the veteran
with a supplemental statement of the case
and allow him an adequate opportunity to
respond. The case should then be
returned to the Board for appellate
review, if otherwise in order.
By this REMAND Board intimates no opinion, either legal or
factual, concerning the ultimate disposition warranted in
this case. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded to the regional office. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV,
directs ROs to provide expeditious handling of all cases that
have been remanded by the Board and the Court. See M21-1,
Part IV, paras. 8.44-8.45 and 38.02-38.03.
Mark D. Hindin
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2001).